S1E3: Jury Fairness and the Charter
Charter: A Course - A podcast about Canadian Constitutional Law & LitigationShow Notes
About the Series Charter: A Course is a podcast created by the David Asper Centre for Constitutional Rights (the Asper Centre) and hosted by the Asper Centre’s Executive Director Cheryl Milne. Charter: A Course focuses on Canadian constitutional law and litigation. In each episode, we highlight the accomplishments of U of T Law’s faculty and alumni involved in leading constitutional cases and issues. Each episode also includes a “Practice Corner,” where we talk about the ins and outs of what it means to be a constitutional litigator. Whether you are a law student, a lawyer, or just an interested person, we hope that you learn about an aspect of constitutional law and litigation that interests you in our podcast. Show Notes Section 11 of the Canadian Charter of Rights and Freedoms provides a list of rights for persons charged with a crime. These include, but are not limited to, the right to be tried within a reasonable period of time, under section 11(b), the right to be presumed innocent until proven guilty under section 11d, and the right to the benefit of a trial by jury, where the maximum penalty for the offense is imprisonment for five years, or even more severe punishment, under section 11(f). In this episode we speak with Kent Roach, Professor of Law at the University of Toronto and lawyer Christa Big Canoe, Legal Director of Aboriginal Legal Services in Toronto, about jury fairness in Canada, the impact of the Supreme Court’s recent decision in R v Chouhan and the way in which the court's current understanding of jury selection informs the right to a jury that is representative of the community. The conversation also turns to equality rights, jury representation, and the experiences of indigenous people when it comes to juries. Lastly, in this episode’s “Practice Corner” we speak with lawyer Janani Shanmuganathan about some of the practicalities of jury selection from the perspective of a criminal defense lawyer. Find a full transcript of this episode HERE. Case and Reference Links In this episode, the following cases/laws were discussed: R v Chouhan, 2021 SCC 26 (Canlii) R v Kokopenance, 2015 SCC 25 (Canlii) Bill C-75 - An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts R v Stanley, 2018 SKQB 27 (Canlii) About the Asper Centre The Asper Centre, a part of the University of Toronto’s Faculty of Law since 2008, is devoted to realizing constitutional rights through advocacy, research and education. The Centre aims to play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty and members of the bar to work on significant constitutional cases and advocacy initiatives. The Centre was established through a generous gift from U of T law alumnus David Asper (LLM ’07). Thank You’s Charter: A Course is proudly sponsored by the University of Toronto’s affinity partners: MBNA and TD Insurance. We would like to thank each of our sponsors, and you can discover the benefits of affinity products at bit.ly/affinity-offers. We would like to thank the creators of our theme music for Charter: A Course. Constitutional law professor Howie Kislowicz and law professor Rob Currie gave us the licence to use their constitutional law shanty in exchange for a donation to the Calgary Food Bank. The song’s performers are: Vanessa Carroll, Rob Currie, Howie Kislowicz, Avinash Kowshik, Anna Lund, Patricia Paradis, Elin Sigurdson, Lyle Skinner, and Dave Wright. You can listen to the entire shanty here: Charter a Course. Please consider contributing to your local food bank! Thank you to Szymon Rodomar and Flint Patterson, JD students at the U of T Faculty of Law, for their immense contributions to the production of this episode. Thank you to our wonderful guests on this episode, Kent Roach, Christa Big Canoe and Janani Shanmuganathan. Than
More from Charter: A Course - A podcast about Canadian Constitutional Law & Litigation
About the Series Charter: A Course is a podcast created by the David Asper Centre for Constitutional Rights (the Asper Centre) and hosted by the Asper Centre’s Executive Director Cheryl Milne. Charter: A Course focuses on Canadian constitutional law and litigation. In each episode, we highlight the accomplishments of U of T Law’s faculty and alumni involved in leading constitutional cases and issues. Each episode also includes a “Practice Corner,” where we talk about the ins and outs of what it means to be a constitutional litigator. Whether you are a law student, a lawyer, or just an interested person, we hope that you learn about an aspect of constitutional law and litigation that interests you in our podcast. Show Notes This episode focuses on section 33 of the Canadian Charter of Rights and Freedoms, otherwise known as the ‘notwithstanding clause’. Recognized as a distinctive Canadian legal invention, the notwithstanding clause creates a legislative tool that permits federal, provincial or territorial legislatures to declare an act or provision of an act to operate notwithstanding sections 2 and 7 to 15 of the Charter. With the help of our distinguished guest Professor Emerita Lorraine Weinrib we discuss section 33’s unique role within Canada's constitutional democracy, its development, its operation, the political implications of it thus far, and the existing jurisprudence on its application. In our “Practice Corner”, we speak with two lawyers, Gregory Bordan and Marion Sandilands, who are involved in the legal challenge against the invocation of the notwithstanding clause in Quebec's Bill 21, An Act respecting the laicity of the State. Find a full transcript of this episode HERE.Case Links In this episode, the following cases were discussed: Ford v. Quebec (Attorney General), [1988] 2 SCR 712 Hak c. Procureure générale du Québec, 2019 QCCS 2989 Toronto (City) v. Ontario (Attorney General), 2021 SCC 34 About the Asper Centre The Asper Centre, a part of the University of Toronto’s Faculty of Law since 2008, is devoted to realizing constitutional rights through advocacy, research and education. The Centre aims to play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty and members of the bar to work on significant constitutional cases and advocacy initiatives. The Centre was established through a generous gift from U of T law alumnus David Asper (LLM ’07). Thank You’s Charter: A Course is proudly sponsored by the University of Toronto’s affinity partner TD Insurance. We would like to thank our sponsor, and you can discover the benefits of affinity products at bit.ly/affinity-offers. We would like to thank the creators of our theme music for Charter: A Course. Constitutional law professor Howie Kislowicz and law professor Rob Currie gave us the licence to use their constitutional law shanty in exchange for a donation to the Calgary Food Bank. The song’s performers are: Vanessa Carroll, Rob Currie, Howie Kislowicz, Avinash Kowshik, Anna Lund, Patricia Paradis, Elin Sigurdson, Lyle Skinner, and Dave Wright. You can listen to the entire shanty here: Charter a Course. Please consider contributing to your local food bank! Thank you to Caitlin Salvino, JD student at the University of Toronto, Faculty of Law and Asper Centre Summer Research Assistant in 2022, for her contributions to the production of this episode and for taking over hosting duties in the main interview with Professor Weinrib! Thank you to our wonderful guests on this episode, University of Toronto Faculty of Law Professor Emerita Lorraine Weinrib, and lawyers Gregory Bordan and Marion Sandilands. Thank you to our audio editor Liam Morrison of Bell Room Media Solutions. Lastly, we are very grateful to you, our listeners, for taking the time to join us on as we continue to Charter a course into podcasting!
About the Series Charter: A Course is a podcast created by the David Asper Centre for Constitutional Rights (the Asper Centre) and hosted by the Asper Centre’s Executive Director Cheryl Milne. Charter: A Course focuses on Canadian constitutional law and litigation. In each episode, we highlight the accomplishments of U of T Law’s faculty and alumni involved in leading constitutional cases and issues. Each episode also includes a “Practice Corner,” where we talk about the ins and outs of what it means to be a constitutional litigator. Whether you are a law student, a lawyer, or just an interested person, we hope that you learn about an aspect of constitutional law and litigation that interests you in our podcast. Show Notes With the help of our distinguished guests, Professor David Schneiderman and Professor Ashwini Vasanthakumar, we discuss how our section 2 freedoms – the freedom of expression, the freedom of association, and the freedom of assembly – protect our right to protest. Tracing the history of the right to protest up until some of the more recent instances of protests in this country, our guests share insights about the many moral and political purposes of this right in Canada. In the Practice Corner, Steven Barrett, Managing Partner of Goldblatt Partners LLP, discusses the freedoms of expression, association, and assembly in the labour law context. We hear about the jurisprudence leading up to the Supreme Court’s recognition of a constitutional right to strike and discuss how the Charter is litigated in employment and labour disputes. We also hear more about Bill 28 and the provincial government’s use of the notwithstanding clause to limit the right to strike. Find a FULL TRANSCRIPT of this episode HERE. Case Links In this episode, the following were discussed: Cases: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 SCR 313 British Columbia Teachers' Federation v. British Columbia, 2016 SCC 49 Dunmore v. Ontario (Attorney General), 2001 SCC 94 Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458 Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 OPSEU et al. v. Ontario 2016 ONSC 2197 Bills: Bill 28, Keeping Students in Class Act, 2022 Bill 115, Putting Students First Act Bill 124, Protecting a Sustainable Public Sector for Future Generations Act, 2019 Statutes: International Labour Organization conventions and recommendations Labour Relations Act, 1995, S.O. 1995, c. 1 Wagner Act, United States [1935] The Declaration of the Rights of Man and of the Citizen, 1789 Protests: G 20 Protests Black Lives Matter protest in the pride parade in Toronto Freedom convoys in 2022 Protests at Ferry Creek Wet’suwet’en protests APEC protests at UBC Additional Resources: "Investment Law's Alibis: Colonialism, Imperialism, Debt and Development" by David Schneiderman "Freedom of Expression in Canada" by Kent Roach and David Schneiderman "Red, White, and Kind of Blue?: The Conservatives and the Americanization of Canadian Constitutional Culture" by David Schneiderman Sara Slinn, Associate Professor at Osgoode Previous episode with Professor Lorraine Weinrib: "Section 33 of the Charter: The Notwithstanding Clause" About the Asper Centre The Asper Centre, a part of the University of Toronto’s Faculty of Law since 2008, is devoted to realizing constitutional rights through advocacy, research and education. The Centre aims to play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty and members of the bar to work on significant constitutional cases and advocacy initiatives. The Centre was established through a gen
Charter: A Course A podcast about Canadian Constitutional Law & Litigation Season 4, Episode 7: Section 25 of the Charter and Dickson v Vuntut Gwitchin FN This episode marks the second of a two-part series on Indigenous self-determination and its intersections with the Constitution and the Canadian Charter of Rights and Freedoms. This episode focuses on Section 25 of the Charter of Rights and Freedoms and the recent Supreme Court of Canada decision in Dickson v Vuntut Gwitchin First Nation. Section 25 guarantees that certain rights and freedoms in the Charter “shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including: a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and b) any rights or freedoms that now exist by way of land claim agreements or may be so acquired.” In the first part of the episode, Cheryl speaks with Professor Kerry Wilkins to discuss the meaning of Section 25 of the Charter, its history, its recent application, and its intersection with the implementation of UNDRIP, the UN Declaration on the Rights of Indigenous Peoples in Canada. In the Practice Corner, Cheryl speaks with Indigenous rights lawyer Kris Statnyk, a citizen of the Vuntut Gwitchin FN about his legal practice and his experience representing the Vuntut Gwitchin FN in the Dickson appeal. Find a FULL transcript of this episode HERE. Case Links and other Resources In this episode, the following cases, Declaration, book and paper were discussed/mentioned: Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10 Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 United Nations Declaration on the Rights of Indigenous Peoples Indigenous Difference and the Constitution of Canada by Patrick Macklem (2001, U of T Press)Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 Naiomi Metallic, "Checking our Attachment to the Charter and Respecting Indigenous Legal Orders: A Framework for Charter Application to Indigenous Governments" (2022) 31:2 Constitutional Forum constitutionnel 3 Truth and Reconciliation Commission of Canada: Calls to Action About the Series Charter: A Course is a podcast created by the David Asper Centre for Constitutional Rights (the Asper Centre) and hosted by the Asper Centre’s Executive Director Cheryl Milne. Charter: A Course focuses on leading Canadian constitutional cases and current constitutional law issues, highlighting strategic aspects of constitutional litigation and exploring what it’s like to practice in this area of law in our Practice Corner segment. Whether you are a law student, a lawyer, or just an interested person, we hope that you learn about an aspect of constitutional law and litigation that interests you in our podcast. Thank You’s Thank you to our wonderful guests on this episode, Prof Kerry Wilkins and Kris Statnyk! Thank you to University of Toronto Faculty of Law JD students Joshua Schwartz, Meg Zhang and Emma Blanchfield, who greatly assisted with the development and production of this episode. Thank you also to Flint Patterson, former Asper Centre podcast producer and JD at the University of Toronto Faculty of Law for initially proposing this episode topic (we just had to wait until the SCC issued its decision). Thank you, as always, to our excellent audio editor Liam Morrison of Bell Room Media Solutions. Thank you to the creators of our theme music, Charter: A Course! Constitutional law professor Howie Kislowicz and law professor Rob Currie gave us the licence to use their constitutional law shanty in exchange for a donation to the Calgary Food Bank. The song’s performers are Vanessa Carroll, Rob Currie, Howie Kislowicz, Avinash Kowshik, Anna Lund, Patricia Paradis, Elin Sigurdson, Lyle
Charter: A Course A podcast about Canadian Constitutional Law & Litigation Season 4, Episode 6: Section 35 of the Constitution and Bill C-92 Reference This episode marks the first of a two-part series on Indigenous self-determination and its intersections with the Constitution and the Canadian Charter of Rights and Freedoms. This particular episode focuses on Section 35 of the Constitution Act, 1982, and what the recent Supreme Court Reference on Bill C-92, An Act respecting the First Nations, Inuit, and Métis Children, Youth, and Families means for Indigenous self-government and control over child welfare in Canada. In the first part of the episode, Cheryl speaks with Professor John Borrows, the Loveland Chair in Indigenous Law at the University of Toronto Faculty of Law on Section 35, the Bill C-92 Reference and recent advancements on Indigenous self-government. In the Practice Corner, Cheryl chats with lawyer Jessica Orkin, of Goldblatt Partners LLP, on the practical realities of putting forth a claim under Section 35. Find a FULL transcript of this episode HERE. Case Links and other Resources In this episode, the following cases, Acts and report were discussed: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256 R v . Pamajewon, [1996] 2 S.C.R. 821 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 United Nations Declaration on the Rights of Indigenous Peoples Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 An Act respecting First Nations, Inuit and Métis children, youth and families S.C. 2019, c.24 Truth and Reconciliation Commission of Canada: Calls to Action About the Series Charter: A Course is a podcast created by the David Asper Centre for Constitutional Rights (the Asper Centre) and hosted by the Asper Centre’s Executive Director Cheryl Milne. Charter: A Course focuses on leading Canadian constitutional cases and current constitutional law issues, highlighting strategic aspects of constitutional litigation and exploring what it’s like to practice in this area of law in our Practice Corner segment. Whether you are a law student, a lawyer, or just an interested person, we hope that you learn about an aspect of constitutional law and litigation that interests you in our podcast. Thank You’s Thank you to our wonderful guests on this episode, Prof John Borrows and Jessica Orkin! Thank you to University of Toronto Faculty of Law JD students Joshua Schwartz, Meg Zhang and Emma Blanchfield, who greatly assisted with the production of this episode. Thank you to our audio editor Liam Morrison of Bell Room Media Solutions. Thank you to the creators of our theme music, Charter: A Course! Constitutional law professor Howie Kislowicz and law professor Rob Currie gave us the licence to use their constitutional law shanty in exchange for a donation to the Calgary Food Bank. The song’s performers are Vanessa Carroll, Rob Currie, Howie Kislowicz, Avinash Kowshik, Anna Lund, Patricia Paradis, Elin Sigurdson, Lyle Skinner, and Dave Wright. You can listen to the entire shanty here: Charter a Course. Please consider contributing to your local food bank.
Charter: A Course A podcast about Canadian Constitutional Law & Litigation Season 4, Episode 5: Section 32(1) of the Charter: Application to Quasi-Government Bodies This episode focuses on section 32(1) of the Canadian Charter of Rights and Freedoms, which says that the Charter applies to the Parliament and government of Canada in respect of all matters within the authority of Parliament and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. With the help of our guest, Susan Ursel, who was the Asper Centre's Constitutional Litigator in Residence in 2018, we explore the Supreme Court’s approach to when and how the Charter applies to quasi-government bodies, such as school boards, universities, colleges and hospitals. And we discuss Susan’s experience representing the Asper Centre in its intervention in the York Region District School Board case. In the Practice Corner, Cheryl speaks with research lawyer Jennifer Taylor, who was a co-author of “Strengthening the Pillars: Report of the TMU External Review,” about the application of the Charter to university settings, looking at the values these institutions uphold, such as freedom of expression and academic freedom, which are similar to the Charter rights of freedom of expression and conscience. Find a FULL transcript of this episode HERE. Case Links and other Resources In this episode, the following cases and report were discussed: McKinney v. University of Guelph, [1990] 3 S.C.R. 229 Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570 University of Toronto (Governing Council) v. Doe et al. 2024 ONSC 3755 York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293 Strengthening the Pillars: Report of the TMU External Review Thank You’s Thank you to our wonderful guests on this episode, Susan Ursel and Jennifer Taylor! Thank you to University of Toronto Faculty of Law JD student Leon Xu, who helped with the production of this episode. Thank you to our audio editor Liam Morrison of Bell Room Media Solutions. Thank you to the creators of our theme music, Charter: A Course! Constitutional law professor Howie Kislowicz and law professor Rob Currie gave us the licence to use their constitutional law shanty in exchange for a donation to the Calgary Food Bank. The song’s performers are Vanessa Carroll, Rob Currie, Howie Kislowicz, Avinash Kowshik, Anna Lund, Patricia Paradis, Elin Sigurdson, Lyle Skinner, and Dave Wright. You can listen to the entire shanty here: Charter a Course. Please consider contributing to your local food bank. About the Series Charter: A Course is a podcast created by the David Asper Centre for Constitutional Rights (the Asper Centre) and hosted by the Asper Centre’s Executive Director Cheryl Milne. Charter: A Course focuses on leading Canadian constitutional cases and current constitutional law issues, highlighting strategic aspects of constitutional litigation and exploring what it’s like to practice in this area of law in our Practice Corner segment. Whether you are a law student, a lawyer, or just an interested person, we hope that you learn about an aspect of constitutional law and litigation that interests you in our podcast.